Opinion
C054460
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. LOUIS LOCKHART, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury found defendant Louis Lockhart guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and found he had inflicted great bodily injury (§ 12022.7). On appeal, he contends the trial court violated his constitutional right to due process and to a jury trial when it altered the charges contained in the jury instructions during deliberations. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL BACKGROUND
Joshua Wittmayer and his brothers, Aaron Wittmayer and Matthew Wittmayer, arrived at a bar around 8:30 p.m. on April 11, 2003. The Wittmayers were accompanied by their cousin, Corrie Burgos, and friends Jeanna Downey and Megan Brown. Defendant Louis Lockhart and his nephew, Anthony Lockhart, were also at the bar. Around closing time, a fight broke out in the parking lot, during which Joshua was stabbed numerous times on his arm, chest, and back. The witnesses (the Wittmayers and Corrie), who were all intoxicated at the time, gave somewhat inconsistent accounts of precisely what happened during the fight.
Because some individuals share surnames, we shall use first names. We do so to avoid confusion.
Corrie had been talking to Anthony at the bar that evening, and Anthony had introduced her to his uncle (defendant). Defendant had gray hair which he wore in a ponytail. From their conversation, Corrie learned where Anthony worked. Around 1:30 or 2:00 a.m., Aaron and Anthony began exchanging combative words. The confrontation escalated and the two went outside. Joshua, Matthew, and defendant were already outside in the parking lot.
As Anthony and Aaron left the bar, still arguing and about to fight, defendant said to Aaron, "Ill fuckin stab you," and reached into his pocket. Matthew saw something gleaming, like chrome, coming out of defendants pocket. Joshua struck defendant with his elbow or forearm and a scuffle ensued.
Another individual ran toward the fight, but Matthew caught him and put him in a headlock in an effort to prevent the situation from escalating. Both Joshua and defendant were on the ground. Anthony kicked Joshua in the face and then held Joshua down while defendant stabbed him repeatedly. At this point, Matthew heard the girls yelling, "Josh is being stabbed." At first, Matthew could only see a bunch of rough-housing, but when he released the individual he had in the headlock and ran over, he saw defendant stab Joshua in the back.
When Aaron heard Matthew yell that Joshua was being stabbed, he ran to his car and got a golf club. Matthew grabbed the golf club from Aaron and chased defendant and Anthony away. Joshua, covered in blood, fell into Aarons arms. Joshua had sustained six stab wounds to his back, one to his arm, one to his chest, and two lesser wounds. He suffered a partially collapsed lung with air and blood in the chest cavity. He also suffered nerve damage and had a panic attack following the incident.
Joshua told the officers who arrived at the scene that he did not think he had been stabbed, although he was covered in blood and had numerous stab wounds. Joshua was intoxicated and later tested positive for cocaine and benzodiazepines. Joshua did not recall his contact with the officers at the scene or being stabbed.
Matthew originally identified a different man, who also had a ponytail, as the assailant, but retracted that identification when he saw the man more closely. Officers eventually located Anthony and defendant through Anthonys place of employment. A few weeks after the incident, Matthew picked defendant and Anthony out of separate photo lineups. Specifically, he told the officer that the photo of defendant looked the closest, although Matthew did not get a good look at the assailant. Matthew had also consumed several alcoholic beverages on the night of the incident and had ingested some cocaine and Vicodin.
Aaron also picked defendant and Anthony out of separate photo lineups. Aaron admitted that he was not entirely sure about the identification of defendant, partly because he was extremely intoxicated the night of the incident.
Corrie also picked defendant out of the photo lineup, saying she was not sure, but that defendant looked like the man from the night of the incident. Corrie was also intoxicated the night of the incident, having consumed about five alcoholic drinks.
E. L., an employee of the bar, testified as a defense witness. She recalled the fight between the Wittmayers and the Lockharts. There had been a verbal altercation earlier in the evening between the Wittmayers and the Lockharts. At one point, she had asked Aaron if he had a knife and Aaron assured her he did not have one. At closing time, she perceived trouble between Aaron and Anthony and told Anthony to wait until the Wittmayers left the bar to avoid confrontation. As she walked Anthony out of the bar door, she saw Aaron lunge at defendant and a fight broke out. She ran and called the police, and returned to see the five men (the Wittmayers and the Lockharts) in a pile on the ground. She was then distracted with talking another patron out of joining in the fight. When she turned back around, defendant and Anthony were gone. She never saw any weapons. During her original interview, she did not say that Aaron lunged at defendant, but rather, indicated that defendant was fighting with two Wittmayer brothers when she got outside.
Defense counsel argued that the People had not proven it was defendant who had done the stabbing. In so arguing, defense counsel focused on the evidence that the Wittmayers and Corrie were intoxicated and not entirely consistent in describing the details of the fight, that they had identified defendant in the photo lineup with varying degrees of certainty, and that it was possible it was Anthony, the other man with the ponytail, or even a confused and intoxicated Wittmayer, who had done the stabbing.
Due to a clerical error, the photo lineup and all of the physical evidence was destroyed.
PROCEDURAL BACKGROUND
Defendant was charged by information with one count of violation of section 245, subdivision (a)(1), as follows: "On or about April 11, 2003, at and in the County of Sacramento, State of California, defendant(s) ANTHONY CURTIS LOCKHART and LOUIS T. LOCKHART did commit a felony namely: a violation of Section 245(a)(1) of the Penal Code of the State of California, in that said defendant(s) did willfully and unlawfully commit an assault upon JOSHUA WITTMAYER, with a deadly weapon, to wit, a knife, and by means of force likely to produce great bodily injury." It was further alleged that the defendants had personally inflicted great bodily injury on Joshua Wittmayer within the meaning of section 12022.7, subdivision (a).
Defendant proceeded to a jury trial without codefendant Anthony Lockhart. The jury was instructed that defendant had been charged with "assault with a knife[.]" The jury was also instructed that, in order to find defendant guilty of assault, it must find that he "did an act with a deadly weapon[.]" The verdict form read, "We, the Jury . . . find the defendant . . . GUILTY of the crime of a violation of Section 245(a)(1) . . . (ASSAULT WITH A KNIFE) as charged in Count One of the Information." (Emphasis in original.)
When the jury began deliberating, the parties stipulated that if the jury had a question, the attorneys would be contacted and a response formulated. The parties further agreed that the response could be sent to the jury without defendant being present.
During deliberations, the jury asked the trial court to define the phrase "`to wit, a knife on the verdict form." Counsel were telephoned and the following response was formulated and provided to the jury: "The exact language of Penal Code Section 245(a)(1) is `deadly weapon. Deadly weapon is defined in CalCrim 875. [¶] The verdict form should correctly read deadly weapon. A corrected form is being supplied."
Neither the verdict form nor any of the instructions actually used the language "to wit, a knife."
The jury was provided with Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 875, which read, in part: "The defendant is charged in Count One with assault with a deadly weapon. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; . . ." and further instructed that "[a] deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." (Italics in original.)
Shortly thereafter, the jury noted the inconsistency in the instructions in that the jury had been instructed that defendant had been charged with "assault with a knife" but also instructed that, in order to find defendant guilty of assault, it must find that he "did an act with a deadly weapon," with no mention of a knife. The jury asked if "Count One specifically includes (Assault with a Knife)" and if it "specifically refers to assault with a knife, [to] please define [`]knife[]." After contacting counsel, the following response was provided to the jury: "No. Count One does not specifically require a knife. It specifically requires a deadly weapon. [¶] The inconsistency on page four is from the Information filed in the case which is a notice pleading. You are being provided with a corrected page four where the words deadly weapon will be substituted for the word knife. [¶] You are also being provided with a corrected form of verdict where the words deadly weapon will be substituted for the words [sic] knife."
The jury was provided with the new instruction which indicated that defendant had been charged with "assault with a deadly weapon . . ." and a new verdict form which read, "We, the Jury . . . find the defendant . . . GUILTY of the crime of a violation of Section 245(a)(1) . . . (ASSAULT WITH A DEADLY WEAPON) as charged in Count One of the Information." (Emphasis in original.)
The jury then returned a guilty verdict.
DISCUSSION
Defendant contends the trial court violated his constitutional right to due process and to a jury trial when it altered the charges contained in the jury instructions during deliberations to delete the specific references to a knife. Specifically, he contends the amendment violated his due process right to fair notice of the charges and the opportunity to prepare a defense. We find no error.
Defendant also claims the amendment violated his right to "unimpeded jury deliberations" but fails to elaborate on precisely how this right was violated. We need not consider contentions for which a party offers no authority or reasoned argument. (See People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [issues perfunctorily asserted need not be considered].)
"Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them. [Citations.] . . . `The "preeminent" due process principle is that one accused of a crime must be "informed of the nature and cause of the accusation." [Citation.] Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. [Citation.]" (People v. Seaton (2001) 26 Cal.4th 598, 640-641.)
"[T]he purpose of the charging document is to provide the defendant with notice of the offense charged. (§ 952.) The charges thus must contain in substance a statement that the accused has committed some public offense, and may be phrased in the words of the enactment describing the offense or in any other words sufficient to afford notice to the accused of the offense charged . . . . [Citations.]" (People v. Bright (1996) 12 Cal.4th 652, 670, overruled on another ground in People v. Seel (2004) 34 Cal.4th 535, 550.)
"[I]t does not constitute a denial of due process to permit amendment of an information during trial if the amendment does not change the nature of the offense charged nor prejudice the defendants rights." (People v. Garringer (1975) 48 Cal.App.3d 827, 833.) "Moreover, a trial court correctly exercises its discretion by allowing an amendment of an information to properly state the offense at the conclusion of the trial." (People v. Winters (1990) 221 Cal.App.3d 997, 1005.) "[I]n the absence of an abuse of discretion the trial courts determination will not be disturbed on appeal." (People v. Witt (1975) 53 Cal.App.3d 154, 165.)
Applying these well-established principles, we find no error. The allegation that the deadly weapon used by defendant was a knife was not a necessary element to prove assault with a deadly weapon, and where the precise stabbing weapon used by defendant was not necessarily known, as here, due process did not require it be specified in the charging document. (People v. Griggs (1989) 216 Cal.App.3d 734, 739-742 [naming of particular victim not an element of assault with deadly weapon nor required by due process to be alleged in charging document].) The amendment of the charges, as submitted to the jury, consisted merely of striking surplusage. It was not a material change nor did it charge a new or different offense. (See People v. Murphy (1973) 35 Cal.App.3d 905, 922-923.) Defendant remained charged with assault with a deadly weapon in violation of section 245, subdivision (a)(1). There could be no confusion as to the event or offense involved.
We identify no genuine issue as to whether the amendment prejudiced defendants substantial rights in this case. Where, as here, the defendant does not object or request a continuance, not only is the issue forfeited, but we may presume he was not prejudiced by the amendment. (People v. Thompson (1934) 3 Cal.App.2d 359, 362; People v. Newlun (1991) 227 Cal.App.3d 1590, 1604.) Moreover, the record establishes that defendants ability to defend against the charges was not prejudiced by the amendment.
Concerned with forfeiture, defendant states that "to the extent counsel here may have failed to object, he would be subject to a claim of ineffective assistance . . . ." Defendant, however, did not develop any argument that he was provided ineffective assistance of counsel. Again, we need not consider contentions for which a party offers no reasoned argument. (See People v. Turner, supra, 8 Cal.4th at p. 214, fn. 19.) Moreover, to establish ineffective assistance of counsel, defendant must show trial counsels conduct was unreasonable in light of accepted professional norms, and defendant was prejudiced as a result. (Strickland v. Washington (1984) 466 U.S. 668 ; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Defendant fails on both prongs. As explained herein, defendant was not prejudiced by the amendment; and since he was not prejudiced, counsel had no reason to object.
The factual underpinnings for the assault with a deadly weapon offense were defined prior to trial and did not change. Defendant was accused of being the individual who stabbed Joshua during the brawl. Defendants defense was not the nature of the weapon used, or that a deadly weapon was not used against Joshua. Rather, defendant disputed the identification of the perpetrator of the stabbing.
Whether the stabbing device was a knife or some other deadly weapon was immaterial in this case. Accordingly, defendant was not misled as to the nature of the charge he was required to meet or ambushed by a new or unexpected theory of culpability. There was no violation of due process.
DISPOSITION
The judgment is affirmed.
We Concur:
RAYE, Acting P.J.
CANTIL-SAKAUYE, J.